United States v. Burgos-Montes

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation786 F.3d 92
Docket NumberNo. 13–2305.,13–2305.
PartiesUNITED STATES of America, Appellee, v. Edison BURGOS–MONTES, Defendant, Appellant.
Decision Date13 May 2015

786 F.3d 92

UNITED STATES of America, Appellee
v.
Edison BURGOS–MONTES, Defendant, Appellant.

No. 13–2305.

United States Court of Appeals, First Circuit.

May 13, 2015.


786 F.3d 98

Rachel Brill, for appellant.

Francisco A. Besosa–Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD and KAYATTA, Circuit Judges.

Opinion

KAYATTA, Circuit Judge.

Edison Burgos–Montes (“Burgos”) appeals from his conviction for two counts of drug conspiracy and two counts of murder. The latter stem from the disappearance of Burgos' girlfriend Madelin Semidey–Morales (“Semidey”) shortly after Burgos learned that she had been acting as a government informant. Although the government sought the death penalty, the jury sentenced Burgos to life in prison. Burgos now challenges his conviction on a large number of grounds. For the reasons described in this opinion, we affirm the district court in full.

I. Background

In this appeal, Burgos challenges the sufficiency of the evidence supporting

786 F.3d 99

his conviction, the denial of several pre-trial motions to suppress evidence, and a number of other district court actions before and during trial. We typically recite those facts relevant to sufficiency claims and challenges to a denial of a motion to suppress in the light most favorable to the verdict or to the district court's ruling. See United States v. Bayes, 210 F.3d 64, 65–66 (1st Cir.2000) (sufficiency); United States v. Soares, 521 F.3d 117, 118 (1st Cir.2008) (suppression). For other issues, such as claims of prejudicial error, we offer a “balanced” treatment, see United States v. Felton, 417 F.3d 97, 99 (1st Cir.2005), in which we “objectively view the evidence of record.” United States v. Nelson–Rodríguez, 319 F.3d 12, 23 (1st Cir.2003).1 Given that we cannot simultaneously recite the facts in both manners, we limit our initial summary of this lengthy record to those details essential to framing the issues on appeal. We then offer the key facts relevant to each issue as part of our discussion of that issue, recited in the appropriate form. We do the same for the standard of review for each issue.

In October 2004, Semidey agreed to work with agents of the federal Drug Enforcement Administration (“DEA”) to inform on Burgos. Semidey had begun dating Burgos while her husband was in jail, and she continued to do so after her husband was released. Over the next nine months, Semidey moved in with Burgos and provided information to the DEA, arranged a meeting in which undercover officers negotiated a cocaine sale with Burgos (although the sale was never consummated), and recorded conversations between herself and Burgos. In these conversations, Burgos described, among other things, techniques for importing cocaine from the Dominican Republic to Puerto Rico, and the prices he generally charged for kilogram-quantities of cocaine. According to trial testimony, sometime around June 2005, one of Burgos' employees told Burgos that Semidey was an informant, a claim that Burgos investigated and confirmed. Semidey also told her handlers (according to her handlers) that Burgos had threatened to kill her over this rumor, and suggested that if she ever disappeared, agents should look for her body on a “farm” that Burgos owned. On July 4, 2005, Semidey disappeared after telling her handler that she had returned to Burgos' house. A witness at trial testified that she last saw Semidey getting into Burgos' car on the night Semidey disappeared. Two days later, law enforcement agents observed Burgos supervising an employee as the employee cleaned the inside of Burgos' car during a rainstorm.

After efforts to locate Semidey proved unsuccessful, DEA agents sought and received

786 F.3d 100

the authorization to wiretap Burgos' cell phone in September 2005. In December, DEA agents also recruited a co-conspirator named Neftalí Corales–Casiano (“Corales”) to work as an informant. He recorded a number of telephone calls between himself and Burgos between December 20 and 28. Most incriminating was a December 28 conversation in which Corales said he was concerned that Semidey's body would be found, to which Burgos replied, “It won't appear.” On December 29, the government sought and received authorization to search Burgos' farm, as well as the car that agents had observed Burgos having an employee clean two days after Semidey disappeared. The search of the car revealed traces of blood that DNA analysis suggested was Semidey's. Semidey never reappeared, and her body was never found.

In January 2006, Burgos was indicted for conspiring to import and conspiring to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 846, 841(a), 963, and 952. The indictment described a conspiracy lasting from 1998 to 2005, and described a number of acts in furtherance of the conspiracy that took place primarily between January and June 2005, including discussions with unindicted co-conspirators about arrangements to purchase between one and ten kilograms of cocaine, and stealing a boat. A May 2006 superseding indictment added two murder counts, stemming from Semidey's disappearance. The indictment charged that Burgos had murdered Semidey to prevent her from communicating with law enforcement and to retaliate against her for communicating with law enforcement in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (C), and 1513(a)(1)(B).2 The government also notified Burgos that it would seek the death penalty.

In the lead-up to trial, Burgos filed a number of motions seeking to strike the death penalty, all of which were denied. He also filed numerous motions to suppress evidence. Although the district court granted some of his motions to suppress, it denied both a motion to suppress the evidence obtained through the wiretap, United States v. Burgos Montes, No. 06–009–01(JAG), 2010 WL 5184844, at *13 (D.P.R. Dec. 20, 2010), and a motion to suppress evidence from the search of Burgos' car and farm. United States v. Burgos Montes, No. Crim. 06–009 JAG, 2011 WL 1743420, at *1 (D.P.R. May 2, 2011).

After hearing thirty days of evidence, the jury convicted Burgos on all four counts. During the penalty phase of the trial, Burgos raised allegations of possible juror bias. The district court held an in camera meeting with the juror in the presence of counsel and determined that there was no bias, so the juror returned to the box and the penalty phase continued. On the basis of this episode, Burgos filed a motion for acquittal or new trial. He also moved for acquittal or new trial on the basis that the evidence fell short of the minimum sufficient to convict.3 The court denied both motions in a sealed order. Because the jury could not reach a unanimous verdict on the death penalty, Burgos was sentenced to life imprisonment.

Burgos filed a timely notice of appeal challenging: (1) the denial of the motion to

786 F.3d 101

suppress evidence from the wiretap, (2) the denial of the motion to suppress evidence from the search of the car and farm, (3) the denial of the motion for acquittal or new trial on the basis of alleged jury bias, (4) the denial of the motions to strike the death penalty, (5) the denial of the motions to acquit or for a new trial based on the sufficiency of the evidence, and (6) various evidentiary rulings.

II. Analysis

A. Motion To Suppress Wiretap Evidence

Burgos challenges the district court's denial, after an evidentiary hearing, of his motion to suppress a number of conversations recorded through a wiretap of his cell phone after Semidey disappeared. The wiretap was authorized under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 –22, which imposes a set of statutory requirements on top of the constitutional requirements applicable to ordinary search warrants. See United States v. Nelson–Rodríguez, 319 F.3d 12, 32 (1st Cir.2003). Burgos advances four primary challenges to the wiretap, which we address in turn.

1. “Omitted” Information About Semidey

Burgos' first argument is that in the affidavit in support of their wiretap application, the DEA agents omitted information about Semidey that, had it been included, would have precluded a finding of probable cause under the Fourth Amendment of the United States Constitution. In assessing such an argument (assuming the omitted information was intentionally or recklessly withheld), we ask whether the application, had it contained the omitted information, would still have provided a “sufficient” basis for authorizing the wiretap.4 United States v. Young, 877 F.2d 1099, 1102–03 (1st Cir.1989) (citing Franks v. Delaware, 438 U.S. 154, 171–72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ).

The government's application for authorization to conduct a thirty-day wiretap of Burgos' cell phone was supported by a thirty-seven-page affidavit filed by DEA...

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